Madhya Pradesh High Court
Smt.Rekha Devi vs Shriram Chandra Motwani on 28 March, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:15336
1 CRA-2053-1997
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 28th OF MARCH, 2025
CRIMINAL APPEAL No. 2053 of 1997
SMT.REKHA DEVI
Versus
SHRIRAM CHANDRA MOTWANI
Appearance:
Shri Mayank Sharma - Advocate for the appellant.
Shri Ajay Jain - Advocate for the respondent.
Reserved on : 20.03.2025
Pronounced on : 28.03.2025
ORDER
An application for grant of leave to appeal has been preferred by
complainant under Section 378(4) of the Code of Criminal Procedure 1973
for challenging the order passed on 5.1.1996 in R.T. No.563/95 by Judicial
Magistrate First Class, Bhopal, whereby the complaint filed by complainant
under Section 138 of Negotiable Instruments Act, 1881 was dismissed and
the respondent was acquitted.
2. Brief facts relevant for the decision of this application for leave to
appeal are that a complaint was filed by complainant against respondent for
dishonour of two cheques issued for payments of Rs.1,50,000/- and
Rs.1,51,000/- and for non-payment of amounts within the stipulated time
period despite a notice requiring the respondent to pay the cheque amounts;
on 1.5.1995, cognizance of offence was taken and a criminal case was
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2 CRA-2053-1997
registered against respondent; respondent was summoned and he filed an
application for discharge but it was dismissed on 5.1.1996; on the same date,
trial court considered merits of case for preparing particulars of offence
against respondent and under the impugned order it answered the issue in
negative holding that the notice regarding dishonour of cheques was not
served on respondent in accordance with stipulated procedure and even if it
is accepted that the notice was duly served, then the complaint was filed
before the expiry of notice period and, thus, the complaint was found to be
premature and respondent was acquitted.
3. The grounds raised in this application for leave to appeal are that the
trial court committed error in holding that notice was not duly served while
the legal position is that if the notice is not received back or received with a
remark "unserved", then it was supposed to be held that the notice was duly
served; publication of notice in a newspaper is sufficient compliance but the
trial court observed against this legal proposition. Therefore, a request has
been made to grant leave to appeal against the order of acquittal.
4. Counsel for appellant has been heard and the record has been perused.
5. From the decision of Apex Court delivered in the case of Gajanand
Burange v. Laxmi Chand Goyal, 2022 LiveLaw (SC) 682 , this legal position
is settled that in a case where complaint is filed before the expiry of
mandatory period of 15 days from the date of receipt of notice, issued under
Clause (c) of the proviso to Section 138 of Negotiable Instruments Act 1881,
it is not maintainable and the complainant cannot be permitted to present the
very same complaint at any later stage. A three-Judge-Bench of Hon'ble
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3 CRA-2053-1997
Apex Court while deciding the case of Yogendra Pratap Singh v. Savitri
Pandey and another, AIR 2015 SC 157 has held that complaint under Section
138 of Negotiable Instruments Act, 1881 filed before expiry of 15 days of
service of notice, cannot be treated as a complaint in the eye of law and the
criminal proceedings initiated on such complaint are liable to be quashed.
From the reading of these two citations, it is evident that the court cannot
take cognizance on a complaint if it is filed before the expiry of stipulated
period of 15 days from the date of service of notice.
6. From the above referred judgments of Hon'ble Apex Court, it can be
safely gathered that a premature complaint has no validity in the eye of law
and no criminal proceedings can be legally initiated on its basis. Now, we
have to examine whether the facts of present case draw application of these
citations.
7. A reading of complaint reveals that two cheques dated 18.8.1994 to the
tune of Rs.1,50,000/- and Rs.1,51,000/- were allegedly drawn by respondent
in favour of complainant which the latter deposited in her bank account on
25.2.1995 for encashment but they both were dishonoured with a remark that
respondent had stopped the payment thereof. On 1.3.1995 a notice was sent
to respondent but it was received unserved, therefore a notice was published
on 10.3.1995 in a daily newspaper. On account of non-payment of amounts
of dishonoured cheques, a complaint was filed before the Magistrate Court
on 16.3.1995. The entire complaint makes no disclosure about the date on
which dishonoured notice was served on the respondent. The averments
reveal that notice sent on 1.3.1995 remained unserved, therefore complainant
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4 CRA-2053-1997
was relying upon the service of notice effected through publication on
10.3.1995, but if that is considered to be the date of service of notice then
complaint filed on 16.3.1995 was definitely premature as the statutory period
for filing complaint after service of notice is 15 days. The issue of validity of
service of notice is an entirely different aspect, which is not being considered
here.
8. In terms of aforesaid discussion of legal and factual aspects of the case,
this court arrives at a conclusion that Magistrate's Court committed no error
in holding that the complaint filed by complainant was premature and in the
light of decisions of Hon'ble Apex Court, no cognizance could have been
taken on the basis of a premature complaint. The impugned order, therefore,
requires no indulgence.
9. The application for grant of leave to appeal is, therefore, dismissed and
consequently this appeal also stands disposed of.
10. Let a copy of this order along with its record be send to the trial court
for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
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